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".\iT,  PR^smiPTioiTs  OF  Mw  mD  pR^smi^TiajTS  of  faots,  lev? 


Disputed  Questions  of  Evidence 


RELEVANCY: 


PRESUMPTIONS  OF  LAW 


AND 


PRESUMPTIONS  OF  FACT. 


By  FRANCIS  WHARTON,  LL.D. 


REPRINTED  FROM  THE  SOUTHERN  LAW  REVIEW. 


ST.   LOUIS: 
G.  L  JOXES  AXI)  COMPANY. 

1877. 


T 

U3  55'54cl 
1277 


SOME  DISPUTED    QUESTIONS  OF  EVIDENCE. 

I.       RELEVANCY. 

Sir  J.  F.  Stephen,  in  his  Indian  Evidence  Act  of  1872,  pro- 
poses the  following  rules  as  to  relevancy  : 

"  Evidence  may  be  given  in  any  suit  or  proceeding  of  the 
existence  or  non-existence  of  every  fact  in  issue,  and  of 
such  other  facts  as  are  hereinafter  declared  to  be  relevant, 
and  of  no  others. 

"  Facts  which,  though  not  in  issue,  are  so  connected  with 
a  fact  in  issue  as  to  form  part  of  the  same  transaction,  are 
relevant,  whether  they  occurred  at  the  same  time  and  place, 
or  at  different  times  and  places. 

"  Facts  which  are  the  occasion,  cause,  or  effect,  immediate 
or  otherwise,  of  relevant  facts,  or  facts  in  issue,  or  which 
afforded  an  opportunity  for  their  occurrence  or  transaction, 
are  relevant. 

"  Any  fact  is  relevant  which  shows  or  constitutes  a  motive 
or  preparation  for  any  fact  in  issue  or  relevant  fact. 

"  Facts  necessary  to  explain  or  introduce  a  fact  in  issue  or 
relevant  fact,  or  which  support  or  rebut  an  inference  sug- 
gested by  a  fact  in  issue  or  relevant  fact,  or  which  establish 
the  identity  of  any  thing  or  person  whose  identity  is  rele- 
vant, or  fix  the  tim.e  or  place  at  which  any  fact  in  issue  or 
relevant  fact  happened,  or  which  show  the  relation  of  parties 
by  whom  any  such  fact  w^as  transacted,  are  relevant  in  so  far 
as  they  are  necessary  for  that  purpose. 

"  Where  there  is  reasonable  ground  to  believe  that  two  or 
more  persons  have  conspired  together  to  commit  an  offence 
or  an  actionable  wrong,  anything  said,  done,  or  written,  by 
any  one  of  such  persons  in  reference  to  their  common  inten- 
tion, after  the  time  when  such  intentionr  was  first  entertained 
by  any  one  of  them,  is  a  relevant  fact  as  against  each  of  the 


%^ 


\S"5^ 


4  DISPUTED    QUESTIONS    OF    EVIDENCE. 

persons  believed  to  be  so  conspiring,  as  well  for  the  purpose 
of  proving  the  existence  of  the  conspiracy,  as  for  the  pur- 
pose of  showing  that  any  such  person  was  a  party  to  it. 

"Facts  not  otherwise  relevant  are  relevant:  (i)  if  they  are 
inconsistent  with  an\-  fact  in  issue  or  relevant  fact ;  (2)  if  by 
themselves,  or  in  connection  with  other  facts,  they  make  the 
existence  or  non-existence  of  any  fact  in  issue  or  relevant 
fact  highh'  probable  or  improbable. 

"  In  suits  in  which  damages  are  claimed,  any  fact  which, 
will  enable  the  court  to  determine  the  amount  of  damages 
which  ought  to  be  awarded  is  relevant. 

"  Where  the  question  is  as  to  the  existence  of  any  right 
or  custom,  the  following  facts  are  relevant: 

"  (a)  Any  transaction  by  which  the  right  or  custom  in 
question  was  created,  claimed,  modified,  recognized,  asserted^ 
or  denied,  or  which  was  inconsistent  with  its  existence ; 

"  (d)  Particular  instances  in  which  the  right  or  custom  was 
claimed,  recognized,  or  exercised,  or  in  which  its  existence 
was  disputed,  asserted,  or  departed  from. 

"  Facts  showing  the  existence  of  any  state  of  mind — such 
as  intention,  knowledge,  good-faith,  negligence,  rashness,  ill- 
will,  or  good-will  towards  any  particular  person,  or  showing 
the  existence  of  any  state  of  body  or  bodily  feeling — are 
relevant  w^hen  the  existence  of  any  such  state  of  mind  or 
body  or  bodily  feeling  is  in  issue  or  relevant. 

"Where  there  is  a  question  whether  an  act  was  accidental 
or  intentional,  the  fact  that  such  act  formed  part  of  a  series 
of  similar  occurrences,  in  each  of  which  the  person  doing 
the  act  was  concerned,  is  relevant." 

To  Mr.  Whitworth,  an  English  barrister,  we  are  indebted 
fcr  the  following  modification  of  Sir  J.  F.  Stephen's  scheme  : 

"  R^t/c  I. — No  fact  is  relevant  which  does  not  make  the 
existence  of  a  fact  in  issue  more  likely  or  unlikely,  and  that 
to  such  a  degree  as  the  judge  considers  will  aid  him  in  decid- 
ing the  issue. 

'^ Rule  II. — Subject  to  Rule  I,  the  following  facts  are  rele- 
vant: 


DISPUTED    QUESTIONS    OF    EVIDENCE.  5 

1.  Facts  which  are  part  of,  or  which  are  implied  by,  a  fact 
in  issue ;  or  which  show  the  absence  of  what  might  be 
expected  as  a  part  of,  or  would  seem  to  be  implied  by,  a  fact 
in  issue. 

2.  Facts  which  are  a  cause,  or  which  show  the  absence  of 
what  might  be  expected  as  a  cause,  of  a  fact  in  issue. 

3.  Facts  which  are  an  effect,  or  which  show  the  absence  of 
what  might  be  expected  as  an  effect,  of  a  fact  in  issue. 

4.  Facts  which  are  an  effect  of  a  cause,  or  which  show  the 
absence  of  what  might  be  expected  as  an  effect  of  a  cause, 
of  a  fact  in  issue. 

"Rule  III. — Facts  which  affirm  or  deny  the  relevancy  of 
facts  alleged  to  be  relevant  under  Rule  II  are  relevant. 

"  Rnlc  n\ — Facts  relev'ant  to  relevant  facts  are  relevant." 

Sir  J.  F.  Stephen,  in  his  "  Digest  of  the  Law  of  Evidence," 
now  gives  the  following  as  exhibiting  his  final  views,  adopt- 
ing, in  part,  Mr.  Whitworth's  phraseology: 

"  P^vidence  may  be  given  in  any  action  of  the  existence 
or  non-existence  of  any  fact  in  issue,  and  of  any  fact  rele- 
vant to  any  fact  in  issue,  and  of  no  others.  *  *  *  Facts 
which,  though  not  in  issue,  are  so  connected  with  a  fact  in 
issue  as  to  form  part  of  the  same  transaction  or  subject-mat- 
ter, are  relevant  to  the  fact  w-ith  which  they  are  so  connected. 
*  *  *  Facts,  whether  in  issue  or  not,  are  relevant  to  each 
other  when  one  is,  or  probably  may  be,  or  probably  ma}^ 
have  been, 

"The  cause  of  the  other; 

"The  effect  of  the  other; 

"  An  effect  of  the  same  cause : 

"  A  cause  of  the  same  effect ; 
or  when  the  one  shows  that  the  other  must  or  cannot  have 
occurred,  or  probably  does  or  did  exist,  or  not;  or  that  any 
fact  does  or  did  exist  or  not,  which  in  the  common  course  of 
events  would  either  have  caused,  or  have  been  caused,  by  the 
other ;  provided  that  such  facts  do  not  fall  within  the  exclu- 
sive rules,"  before  stated,  "or  the  exceptions,"  afterwards 
stated. 


6  DISPUTED    QUESTIONS    OF    EVIDENCE, 

These  exclusions  and  exceptions  arc  afterwards  thus  speci- 
fied: "■  SiDiilar  but  uiicouucitcd  facts.  The  occurrence  of  a 
fact  similar  to,  but  not  specifically  connected  in,  any  of  the 
ways  hereinbefore  mentioned  with  the  facts  in  issue,  is  not 
to  be  regarded  as  relevant  to  the  existence  of  such  facts  except 
in  the  cases  specially  excepted  in  this  chapter."  The  excep- 
tions are : 

"Acts  showing  intention,  good  faith,  etc.; 

"  Facts  showing  system  ; 

"  Existence  of  a  particular  course  of  business ; 

"Acts  showing  that  a  particular  person  assumed  to  be  a 
public  officer." 

To  the  analysis  just  given,  however,  there  are  objections 
which  I  state  in  outline  in  my  forthcoming  w^ork  on  Evidence 
(§  26),  and  which  I  now  expand.  What  is  a  "cause?"  Is 
not  the  term  open  to  at  least  two  divergent  meanings ;  and 
does  not  the  value  of  the  analysis  before  us  depend  upon 
our  assuming  one  of  these  definitions  to  be  true,  where  there 
are  many  reasons  to  regard  it  as  untrue?  The  "cause"  of 
a  phenomenon,  according  to  Mr.  Mill,  is  the  sum  of  all  its 
antecedents.  The  objection  to  this,  however,  as  is  shown  by 
Trendelenberg,  in  his  acute  essay  on  this  topic,  is,  that  as  all 
nature  is  interdependent,  everything  thus  becomes  the  cause  of 
everything  else ;  and,  hence,  as  all  things  unite  in  this  lateral 
causation,  all  evidence  is  relevant  to  every  issue,  and  no  issue 
can  be  narrowed  to  any  particular  line  of  evidence.  On  the 
other  hand,  if  we  mean  by  "  cause,"  as  I  have  heretofore 
argued  in  this  Review,  such  an  interposition,  by  a  responsi- 
ble moral  agent,  as  produces  specifically  the  particular 
phenomenon  in  litigation,  then  to  say  that  a  particular  fact  is 
relevant  to  prove  causation  is  assuming  the  very  point  in 
issue,  which  is  whether  the  causation  flowed  from  the  particu- 
lar fact. 

Another  criticism  I  would  venture  on  Sir  J.  F.  Stephen's 
analysis  is,  that  the  distinction  made  by  him  between  "  facts 
in  issue"  and  "facts  relevant  to  facts  in  issue"  cannot  be 
sustained.  An  issue  is  never  raised  as  to  an  evidential  fact ; 
the  only  issues  the  law  knows  are  those  which  affirm  or  deny 


DISPUTED    QUESTIONS    OF    EVIDEN'CE.  / 

conclusions  from  one  or  more  evidential  facts.  This  is  shown 
by  Sir  J.  F.  Stephen's  own  illustration:  "A,"  he  says,  w'hen 
explaining  the  supposed  distinction,  "  is  indicted  for  the 
murder  of  B,  and  pleads  not  guilty.  The  following  facts 
ma}-  be  issued  :  the  fact  that  A  killed  B ;  the  fact  that  at  a 
time  when  A  killed  B  he  was  prevented  by  disease  froni 
knowing  right  from  wrong;  the  fact  that  A  had  received  from 
B  such  provocation  as  would  reduce  his  offence  to  man- 
slaughter. The  following  facts  w^ould  be  relevant  to  the 
issue  :  the  fact  that  A  had  a  motive  for  murdering  B;  the  fact 
that  A  admitted  that  he  had  murdered  B;  the  fact  that  A 
was,  after  B's  death,  in  possession  of  property  taken  from  B's 
person."  If  we  scrutinize  the  group  of  facts  classified  in  the 
last  quotation  as  "  facts  in  issue,"  we  will  find  that,  as  they 
are  facts  which  could  not  be  put  in  evidence,  they  are  not 
relevant  facts,  though  they  might  be  relevant  hypotheses  to 
be  sustained  by  relevant  facts.  If  counsel  should  ask  a  wit- 
ness whether  "A  killed  B,"  the  question  would,  if  excepted 
to,  be  ruled  out,  on  the  ground  that  it  called,  not  for  "facts," 
but  for  a  conclusion  from  facts,  and  to  such  conclusions  wit- 
nesses are  not  permitted  to  testify.  Equally  summarily 
would  be  dismissed  the  questions  whether  "  A  knew  right 
from  wrong,"  and  whether  "A  had  received  from  B  such 
provocation  as  would  reduce  his  offence  to  manslaughter." 
The  only  way  of  proving  either  of  these  "  fact  in  issue,"  as  they 
are  called  by  Sir  J.  F.  Stephen,  is  by  means  of  what  he  calls 
"  facts  relevant  to  the  issue."  Did  A  kill  B  ?  We  cannot  say 
hat  it  would  be  relevant  to  the  issue  for  a  witness  to  say,  "  A 
killed  B,"  for  a  witness  would  not  be  permitted  so  to  testify. 
No  facts  are  relevant  which  are  inadmissible ;  and  the  fact 
that  A  killed  B,  being  in  this  shape  inadmissible,  is  irrelevant. 
It  is,  however,  admissible — to  take  up  Sir  J.  F.  Stephen's 
illustration  of  facts  relevant  to  the  issue — to  prove  that  A 
had  a  motive  for  murdering  B;  the  fact  that  A  admitted  that 
he  had  murdered  B ;  the  fact  that  A  was,  after  B's  death,  in 
possession  of  property  taken  from  B's  person.  From  such 
facts,  taken  in  connection  with  facts  which  lead  to  the  con- 
clusion  that   A   struck    the   blow   from   which    B   died,   the 


8  DlSrUTKO    QUESTIONS    OF    l.VinEN'CE. 

hypothesis  that  A  murdered  1^^  is  to  be  verified  or  discarded. 
The  same  Hne  of  observations  is  apphcable  to  the  second 
and  third  of  the  '"facts  in  issue"  mentioned  by  Sir  J.  F. 
Stephen.  The  proof  of  A's  inability  to  distinguish  right 
from  wrong,  and  of  the  e.xtenuation  of  his  offence  through 
hot  blood,  can  only  be  made  by  proving  "  facts  relevant  to 
the  issue"  from  uhich  irresponsibilit}'  or  hot  blood  can  be 
inferred.  We  must,  therefore,  strike  out  from  the  category  of 
relevant  facts  what  Sir  J.  F.  Stephen  calls  "  facts  in  issue," 
or  what  may  be  more  properly  called  pertinent  hypotheses, 
and  limit  ourselves  to  the  position  that  all  facts  relevant  to 
"facts  in  issue"  (or  to  pertinent  hypotlieses)  are,  as  a  rule, 
admissible.  If  we  discard,  as  ambiguous,  the  word  "fact," 
and  substitute  for  it  the  word  "  condition  "  (corresponding  to 
the  logical  " diffctriiha"  or  incident),  then  the  position  we 
may  accept  is  that  all  conditions  of  a  pcriiiiciit  hypothesis  are 
relevant  to  the  issue,  and  that  such  conditions  may  be  either 
proved  or  disproved.'^ 

It  may,  however,  be  objected  that  the  definition  I  now  pro- 
pose is  ambiguous  in  the  use  of  the  word  "pertinent;"  and 
that,  by  the  introduction  of  this  term,  I  beg  the  question  at 
issue.  I  do  not  think  so.  By  pertinent  hypothesis  I  mean 
an  hypothesis  which,  if  proved,  would  logically  influence  the 
issue.  Suppose,  for  instance,  the  question  should  arise 
before  a  duly  constituted  court,  whether  ]\Ir.  Wells,  of  the 
Louisiana  Returning  Board,  was  guilt}^  of  fraud  in  the  altera- 
tion of  returns.  Relevancy  in  such  an  issue  would  be 
determinable,  according  to  the  definition  I  here  propose, 
by  free  logic,  and  not  by  technical  jurisprudence.  The 
hypothesis  set  up  by  the  prosecution  in  such  a  case  would  be 
that  Mr.  Wells,  either  for  money  or  to  gratify  party  zeal, 
tampered  with  the  returns.  If  this  hypothesis  be  sus- 
tained, the  defendant,  if  the  prosecution  be  properly  con- 
ducted, would  be  deservedly  convicted,  and  to  sustain  the 
hypothesis  it  would  be  admissible  to  prove  any  of  its  logical 
conditions.     It  would  be  relevant,  for  instance,  to  prove,  as  a 

*  Note. — The  above  paragraph  (as  well  as  several  others  in  the  course  of 
this  article)  is  taken  from  the  work  on  Evidence  to  which  I  have  referred. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  9 

■condition  of  the  hypothesis  of  corruption,  that  Mr.  Wells 
took  money,  or  offered  to  take  money,  for  his  action  as  a 
return  judge;  or  that  he  made,  personally  or  through  dep- 
uty, falsifications  in  the  records  ;  or  that  by  his  subsequent 
conduct  he  tacitly  admitted  such  falsifications. 

It  will  be  seen,  therefore,  from  the  illustration  just  given 
that  the  conditions  of  a  pertinent  hypothesis,  which  are  as 
such  relevant  to  an  issue,  are  either  prior,  contemporaneous, 
or  subsequent.  A  debt,  for  instance,  for  goods  sold,  as  is 
contended,  is  sued  for.  Among  the  prior  conditions  of  the 
liypothesis  (or  contention)  of  indebtedness  may  be  mentioned 
the  possession  by  the  plaintiff  of  the  goods.  As  contempora- 
neous conditions  are  to  be  classed  what  we  call  the  res  gest(S, 
or  circumstances  of  the  sale.  Among  the  subsequent  condi- 
tions is  the  conduct  of  the  debtor,  more  or  less  effectively 
admitting  the  debt.  Or  damages  are  claimed  in  a  suit  for 
injuring  cattle  by  running  them  down  on  a  railroad.  Among 
the  prior  conditions  of  the  liability  are  the  unfenced  condi- 
tion of  the  road,  and  the  running  of  the  locomotive  at  full 
speed  over  the  unfenced  sections.  Among  the  contempora- 
neous conditions  are  the  irs  gcstce.  Among  the  subsequent 
conditions  is  an  admission  of  parties  entitled  to  speak  for  the 
railroad  company.  In  other  cases  we  may  regard  as  relevant 
conditions  a  party's  subsequent  conduct  showing  good  or  bad 
faith;'  the  subornation  of  witnesses  to  give  a  false  account 
of  a  past  transaction  ;  -  subsequent  acts  of  adultery  to  prove 
a  prior  act  of  adultery  ;3  subsequent  defamatory  words  to 
prove  the  animus  of  prior  defamation.-* 

Of  course,  when  the  conditions  of  a  pertinent  hypothesis 
are  relevant,  it  is  relevant  to  prove  conditions  fatal  to  such 
•an  hypothesis.  If  Mr.  Wells  were  on  trial,  for  instance,  it 
would  be  relev^ant  to  prove  that  he  was  absent  from  Louisi- 
ana at  the  time  of  the  commission  of  the  frauds  on  the  fran- 

'  Gerish  v.  Chaitier,  i  C.  B.  13. 

2  Melhuish  v.  Collier,  15  Q.  B.  878. 

3  Boddy  V.  Boddy,  30  L.  J.  Pr.  &  Mat.  23. 

4  Pearson  v.  Le  Maitre,  6  Scott  N.  R.  607;  5  M.  &  Gr.  700;  Warwick  v. 
Foulkes,  12  M.  &  W.  507  ;   Simpson  v.  Robinson,  12  Q.  B.  511. 


lO  DISPUTED    QUESTIONS    OF    EVIDENCE. 

chisc  of  that  state  ;  or  tluit  he  was  himself  the  ignorant  and 
unsuspecting  dupe  of  others.  Or,  to  turn  to  adjudicated 
cases,  in  a  suit  against  a  railroad  corporation  for  negligently 
firing  the  plaintiff's  farm,  it  is  relevant  for  the  defendant  to 
prove  the  absence  of  conditions  which  would  be  the  prob- 
able, if  not  necessary,  conditions  of  such  h}'pothesis.  So,  the 
defendant  may  show  that  his  engines  were  so  constructed  as 
to  make  the  profuse  emission  of  fire  highly  improbable  ;  that 
the  coals  that  escaped  fell  on  the  bed  of  the  road,  on  which 
there  was  no  accumulation  of  combustible  material ;  and 
that  the  fire  by  which  the  plaintiff  was  injured  was  traceable 
to  the  negligence  of  other  parties.  Or,  when  the  hypothe- 
sis of  the  plaintiff  is  that,  when  A  and  B  perished  in  the 
same  ship  at  sea,  A  survived  B,  it  is  admissible  for  the  defend- 
ant to  show  that  before  the  shipwreck  A  was  stronger  than 
B  ;  that  at  the  time  of  the  shipwreck  A  was  in  a  better  place 
for  the  prolongation  of  life  than  B ;  and  that  after  the  ship- 
wreck there  were  traces  of  A  having  escaped  the  common 
and  immediate  death  of  those  remaining  in  the  ship.  Or, 
alibi  being  the  hypothesis  set  up  by  the  defence,  it  is  admis- 
sible to  prove  even  independent  crimes  committed  by  the 
defendant,  if  such  proof  refutes  the  hypothesis  of  alibi.^ 

One  of  the  most  interesting  illustrations  of  the  doctrine 
here  laid  down  arises  in  cases  in  which  accident  or  casus  is 
set  up  as  a  defence.  A  forged  note  is  passed,  and  the 
defence  is :  "I  passed  it  ignorantly ;  the  whole  thing  was 
accident."  Or  a  man  is  knocked  down  in  the  street,  and  his 
assailant,  when  put  on  trial,  says:  "This  was  all  accident;  I 
was  jostled  against  him  in  the  crowd."  Or  a  carrier  fails  to 
comply  with  a  contract  made  by  him  to  transport  goods  from 
point  to  point,  and  sets  up  casus  or  vis  major  as  his  excuse. 
In  each  of  these  cases  it  is  admissible  to  meet  the  hypothe- 
sis of  vis  major,  casus,  or  accident,  set  up  by  the  defence,  by 
showing  in  rebuttal  a  series  of  other  cases  forming  part  of  a 
system  with  that  in  litigation,  and  to  which,  as  a  bod}-,  the 
defence  in  question  would  be  absurd.     The  rule  in  such  case 

5  R.  V.  Briggs,  2  M.  &  Rob.  199;  R.  v.  Rooney,  7  C.  &  P.  517;  and  see 
AVhart.  on  Ev.  I  28. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  11' 

is  that,  when  a  system  is  estabhshed,  the  conditions  of  other 
members  of  the  system  may  be  proved  to  affect  the  case  in 
court,  has  been  further  illustrated  in  cases  in  which  the  cus- 
toms of  one  manor  are  put  in  evidence  to  affect  other  man- 
ors of  the  same  system.  No  rule  is  better  established,  or 
more  frequently  acted  upon,  than  that  which  precludes  the 
customs  of  one  manor  from  being  given  in  evidence  to  prove 
the  customs  of  another;  because,  as  each  manor  may  have 
customs  peculiar  to  itself,  to  admit  the  peculiar  customs  of 
another  manor  in  order  to  show  the  customs  of  the  manor 
in  question  would  be  inadmissible  as  a  disconnected  fact  by 
the  rule  above  stated,  and  would  put  an  end  to  all  question 
as  to  the  peculiar  customs  in  particular  manors  by  throwing 
them  open  to  the  customs  of  all  surrounding  manors.^  But 
whenever  a  connection  between  the  manors  is  proved,  such 
customs  become  admissible.  It  is  not  enough,  it  is  true,  to 
show  merely  that  the  two  lie  within  the  same  parish  and 
leet ;  nor  even  that  the  one  was  a  subinfeudation  of  the 
other ;  at  least,  unless  it  be  clearly  shown  that  they  were 
separated  after  the  time  of  legal  memory,  since  otherwise 
they  may  have  had  different  immemorial  customs.  On  the 
other  hand,  the  customs  of  manors  become  reciprocally 
admissible  if  it  can  be  proved  that  the  one  was  derived  from 
the  other  after  the  time  of  Richard  the  First;  and  it  has 
been  also  held,  that  if  the  customs  in  question  be  a  particular 
incident  of  the  general  tenure  which  is  proved  to  be  common 
to  the  two  manors,  evidence  may  be  given  of  what  the  cus- 
tom of  the  one  is  as  to  that  tenure  for  the  purpose  of  show- 
ing what  is  the  custom  of  the  other  as  to  the  same.? 

On  the  same  principle,  w4ien  value  is  in  question,  and 
when  certain  things  are  proved  to  belong  to  a  system,  then 
the  market  value  of  such  other  things  is  relevant  for  the 
purpose  of  determining  the  market  value  of  whatever  is  part 
of  the  system.^     We  must  at  the  same  time   remember   that 

6  Anglesey  v.  Hatherton,  lo  M.  &  W.  235. 

7  Ibid. ;  Stanley  v.  White,  14  East,  338. 

8  Campbell  v.  U.  S.,  8  Ct.  of  CI.  240;   Kansas  Stockyard  Co.  v.  Couch,  12. 
Kans.  612;  Waterson  v.  Seat,  10  Fla.  326. 


12  DISPUTED    QUESTION'S    OF    EVIDENXE. 

a  remote  period,  under  different  conditions,  cannot  in  any 
view  be  taken  as  a  standard.^  nor  can  peculiar  associations, 
likely  to  give  a  factitious  value,  be  taken  into  account.'" 
Distant  markets  cannot  be  consulted  in  proof  of  value ;" 
though  it  is  otherwise  if  the  markets  be  in  any  way  inter- 
dependent,'- or  sympathetic. '3  Nor  is  it  admissible  for  things 
of  a  different  species  to  be  taken  into  consideration  in  deter- 
mining value  ;'■♦  nor  should  much  weight  be  attached  to  proof 
that  prices  had  been  offered  in  private  negotiations  by  third 
parties;  such  evidence  being  open  to  fraud,  and,  at  the  best, 
indicating  only  private  opinion,  not  the  opinion  of  a  market. '^ 
And  while  hearsay  is  admissible  to  prove  the  state  of  a 
market,"^  the  value  of  an  article,  or  the  extent  of  a  party's 
income,  cannot  ordinarily  be  inferred  from  the  record  of  a 
tax  assessment.  This  is  the  act  of  a  third  party,  who  must 
be  called  if  obtainable. 

A  still  more  striking  illustration  of  relevancy  based  upon 
system  is  to  be  found  in  the  admissibility  of  collateral  facts 
when  such  facts  go  to  indicate  constant  natural  laws.  The 
seasons,  for  instance,  pursue,  in  the  long  run,  a  regular 
course  ;  and  we  may,  therefore,  presume  that  winter  is  cold 
and  summer  is  warm  ;  though  this  is  open  to  proof  that  in  an 
exceptional  season  the  w'inter  is  comparatively  mild,  and  the 
summer  is  comparatively  cool.     It  may  be  that  in  a  particular 

9  The  Pennsylvania,  5  Ben.  253;  White  v.  R.  R.  30  N.  H.  18S;  French  v. 
Piper,  43  N.  H.  439;  Paine  v.  Boston,  4  Allen,  168;  Benham  v.  Dunbar,  103 
Mass.  365;  Dixon  V.  Buck,  42  Barb.  70;  Columbia  Bridge  v.  Geisse,  38  N. 
J.  L.  39.  See  Potteiger  V.  Huyett,  2  Notes  of  Cas.  690;  Abbey  v.  Dewey, 
25  Penn.  St.  413;   East  Brandywine  R.  R.  v.  Ranck,  78  Penn.  St.  454. 

^°  Palmer  v.  Ferrill,  17  Pick.  58;   McCracken  v.  West,  17  Ohio,  16. 

'^  Davis  V.  Sherman,  7  Gray,  291;  Fowler  v.  Middlesex,  6  Allen,  92.  See,, 
generally,  Kent  v.  Whitney,  9  Allen,  62;  Boston  R.  R.  v.  Montgomery,  119 
Mass.  114;  Freyman  v.  Knecht,  78  Penn.  St.  141  ;  Shenango  v.  Braham,  79 
Penn.  St.  447:  Baber  v.  Rickart,  52  Ind.  594;  McLaren  v.  Birdsong,  24  Ga. 
265. 

^^  Harrington  V.  Baker,  15  Gray,  538;   Greeley  v.  Stilson,  27  Mich.  153. 

^3  Siegbert  v.  Stiles,  39  Wis.  533. 

'4  Cliquot's  Champagne,  3  Wall.  1 14;  Kermott  v.  Ayer,  11  I\Iich.  181  ; 
.  Sisson  V.  R.  R.,  14  Mich.  489;  Comstock  v.  Smith,  20  Mich.  338. 

15  Gouge  V.  Roberts,  53  N.   Y.  619. 

^^  Perkins  v.  People,  27  Mich.  386. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  13- 

winter,  even  in  a  northern  climate,  we  may  have  no  snow- 
storms ;  yet  we  infer  that  what  is  usual  is  continuous,  and 
not  only  do  we  take  each  fall  the  steps  that  will  enable  us  to 
shelter  ourselves  against  snow,  but  we  assume  as  to  any 
given  past  winter  that  there  fell  in  it  the  usual  quantity  of 
snow.  So  with  regard  to  ice.  In  New  England,  for  in- 
stance, ice  crops  are  usually  formed  each  winter,  and  these 
may  be  stored  if  due  diligence  be  shown ;  and  on  a  suit 
based  on  lack  of  diligence  in  this  respect  it  would  be  inferred,  . 
until  the  contrary  was  shown,  that  the  winter  was  cold 
enough  to  produce  the  usual  quantity  of  ice.  Hence  it  is 
that  casus,  or  the  extraordinary  interruption  of  apparent 
physical  laws,  must  be  affirmatively  shown  by  the  party  alleg- 
ing such  interruption  ;  and,  until  such  proof,  that  which  is 
usual  is  deemed  to  be  constant.  In  order,  however,  that  evi- 
dence based  on  the  constancy  of  nature  should  be  received, 
similarity  of  conditions  should  be  first  established.  Thus  in 
an  action  to  recover  damages  for  injury  caused  by  removing 
stones  from  a  river,  resulting  in  the  washing  away  the  plaint- 
iff's land,  it  has  been  held  not  error  to  exclude  evidence  of 
the  effects  of  the  action  of  the  water  at  another  place  and 
time,  the  forces  and  surroundings  not  being  first  shown  to  be 
alike. '7 

One  of  the  most  difficult  questions  that  arises  in  this  con- 
nection is  that  which  is  presented  when,  to  prove  that  the 
negligent  dropping  of  fire  by  a  locomotive  was  the  cause  of 
a  particular  conflagration  by  which  adjacent  property  w'as 
consumed,  the  effort  is  made  to  put  in  evidence  prior  fires 
caused  unquestionably  by  sparks  proceeding  from  engines 
traveling  the  same  road.  Evidence  of  this  class  may  be 
offered  so  as  to  meet  two  distinct  phases  of  fact.  The  first 
is  when  a  plaintiff,  after  proving  that  his  house  was  fired  by 
sparks  emitted  by  engine  No.  i  on  the  defendant's  road, 
offers  to  show  that  on  several  former  occasions  sparks  were 
emitted  by  the  same  engine  in  such  profusion  as  to  lead  to 
the   inference   that  the   engine  was   either   defectively   con- 

^^  See  Hawks  v.  Inhabitants,  no  Mass.  no.  On  the  general  topic,  see 
Mill's  Logic,  ch.  xiv. 


14  DISPUTED    QUKSTIONS    OF    EVIDEN'CE. 

structcd  or  carelessly  driven.  In  such  case  we  must  hold  the 
evidence  to  be  admissible.  The  fact  that  the  engine  has 
frequently  caused  damage  of  this  kind  indicates  defects  in  its 
construction  which  impose  upon  its  owner,  if  not  its  condem- 
nation, at  least  the  exercise  of  peculiar  care  both  in  its  repair 
and  its  management;  and  that  such  care  was  applied,  the 
burden,  after  proof  of  frequent  fires  caused  by  the  same 
engine,  is  on  him  to  show.  On  the  other  hand,  suppose  that, 
after  the  plaintiff  proves  a  firing  from  engine  No.  i,  he  offers 
to  show  a  series  of  prior  firings  from  engines  Nos.  2,  3,  4,  5, 
and  6,  without  offering  to  show  that  there  was  such  identity 
of  construction  of  the  engines,  as  a  mass,  as  to  make  it  prob- 
bable  that  the  defects  in  engines  Nos.  2,  3,  4,  5,  and  6  existed 
in  engine  No.  i.  In  such  case  the  proof  of  firing  from  any 
other  engine  than  No.  i  would  be  as  irrelevant  as,  in  an 
action  by  A  for  hurt  from  a  kick  of  a  horse  belonging  to  B, 
it  would  be  irrelevant  to  show  that  on  other  distinct  occa- 
sions other  horses  of  B  had  kicked  C,  D,  and  E.'^ 

There  is,  however,  another  contingency  in  which  the  argu- 
ment from  system  does  not  apply.  Suppose,  for  instance, 
that  when  evidence  of  prior  firings  by  certain  specified 
engines  is  offered,  there  is  no  identification,  on  the  part  of  the 
plaintiff,  of  the  engine  by  w^hich  the  fire  was  emitted ;  or 
suppose  that,  though  that  particular  engine  is  identified,  there 
is  no  identification  of  the  engines  causing  the  prior  fires,  is 
the  evidence  relevant  ?  We  have  now  to  touch  a  question  of 
probabilities  which  has  already  been  noticed,  and  we  may 
adduce,  in  explanation,  the  same  illustration.  Although 
there  were  one  hundred  thousand  people  of  a  particular  class 
at  a  particular  place  at  a  particular  time,  yet  it  is  relevant  to 
prove  that  A  was  at  that  place  at  that  time  when  the  ques- 
tion is  whether  A  did  something  that  could  only  have  been 
done  at  that  place  and  time.  So,  when  an  offer  is  made  of 
a  series  of  firings  from  a  series  of  unidentified  locomotives  on 
the  same  road,  such  offer  is  relevant  as  one  of  the  conditions 
of  an  hypothesis  which  charges  a  particular  locomotive  with 

iS  Erie  R.  R.  v.  Decker,  78  Penn.  St.  293.  See  Waugh  v.  Sluink.  20  Penn. 
^St.  130;   Carson  V.  Godley,  26  Penn.  St.  iii. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  I5 

the  firing.  Of  weight,  if  disconnected  with  other  evidence, 
it  cannot  be  ;  relevant,  for  the  reasons  just  stated,  it  certainly 
is.  "The  third  assignment  of  error,"  so  speaks  Mr.  Justice 
Strong,  in  giving  an  opinion  to  this  effect  in  the  Supreme 
Court  of  the  United  States  in  1876, '9  is  "that  the  plaintiffs 
were  allowed  to  prove,  notwithstanding  objection  by  the 
defendants,  that  at  various  tim.es  during  the  same  summer, 
before  the  fire  occurred,  some  of  the  defendants'  locomotives 
scattered  fire  when  going  past  the  mill  and  bridge,  without 
showing  that  either  of  those  \\hich  the  plaintiffs  claimed 
communicated  the  fire  were  among  the  number,  and  without 
showing  that  the  locomotives  were  similar  in  their  make, 
their  state  of  repair,  or  management,  to  those  claimed  to 
have  caused  'the  fire  complained  of.  The  evidence  was 
admitted  after  the  defendants'  case  had  closed.  But,  whether 
it  was  strictly  rebutting  or  not,  if  it  tended  to  prove  the 
plaintiffs'  case,  its  admission  as  rebutting  was  within  the 
discretion  of  the  court  below  and  not  reviewable  here.  The 
question,  therefore,  is  whether  it  tended  in  any  degree  to 
show  that  the  burning  of  the  bridge  and  the  consequent 
destruction  of  the  plaintiffs'  property  was  caused  by  any  of 
the  defendants'  locomotives.  The  question  has  often  been 
considered  by  the  courts  in  this  country  and  in  England,  and 
such  evidence  has,  we  think,  been  generally  held  admissible 
as  tending  to  prove  the  possibility,  and  a  consequent  proba- 
bilit)^  that  some  locomotive  caused  the  fire,  and  as  tending 
to  show  a  negligent  habit  of  the  officers  and  agents  of  the 
railroad  company."-"  Or,  again,  if  the  defendants  should  set 
up  the  hypothesis  of  casus,  or  of  one  of  those  occasional 
mechanical  aberrations  which  due  diligence  cannot  exclude, 
then  it  is  relevant  to  show,  as  militating  against  this  hypothe- 

^9  Grand  Trunk   R.  R.  v.  Richardson,  gi  U.  S.  (i  Otto)  454. 

2°  As  concurring  in  this  conckision  may  be  cited  :  Aldridge  v.  R.  R.,  3  Man. 
&  G.  515:  IMgott  V.  R.  R.,  3  M.  cS:  W.  229;  Boyce  v.  R.  R.,  42  N.  H.  97, 
43  N.  H.  627;  Cleaveland  v.  R.  R.,  42  Vt.  449;  Sheldon  v.  R.  R.,  14  N.  Y. 
218;  Fiekl  V.  R.  R..  32  N.  Y.  339;  Westfall  v.  R.  R.,  5  Hun  (N.  Y.),  75; 
Ilayatt  v.  R.  R.,  23  Penn.  St.  373;  R.  R.  v.  Williams,  42  111.  358;  St.  Jos. 
R.  R.  V.  Chase,  11  Kans.  47;  Longabaugh  v.  R.  R.,  9  Nev.  271;  Penn.  R. 
R.  V.  Stranahan,  32  Leg.  Int.  449;  2  Weekly  Notes,  215. 


l6  UISrUTKI)    QUESTIONS    OF    EVIDEN'CE. 

sis,  that  other  engines,  constructed  on  the  same  general 
system  as  that  by  which  the  engine  occasioning  the  fire  was 
constructed,  had  emitted  sparks  to  an  extent  from  which 
neghgence  in  the  construction  of  the  engines,  if  not  in  the 
care  of  them,  may  be  inferred.^'  To  meet  another  probable 
hypothesis  such  evidence  may  be  relevant.  It  may  be 
maintained  by  the  defendants  that  the  object  fired  was  beyond 
the  reach  of  sparks  from  their  engine.  In  answer  to  this  it 
has  been  held  relevant  for  the  plaintiff  to  prove  that,  a  short 
time  before,  the  defendants'  engines,  when  passing  the  same 
point,  emitted  sparks  which  fell  further  than  the  building  for 
whose  firing  the  plaintiff  sues. 

II.       PRESUMPTIONS    OF    FACT    AND    PRESUMPTIONS    OF    LAW. 

The  fallac}^  which  logicians  call  "  confusion  of  terms " 
has  had  a  peculiarly  mischievous  influence  in  dealing  with  the 
doctrine  of  Presumptions.  I  have  taken  occasion,  in  my 
discussion  of  this  topic  in  my  work  on  Evidence,  to  show 
that  the  term  prccsuuitio,  in  its  classical  sense,  means  exxlu- 
sively  a  rule  of  law  adopted  for  the  purpose  of  determining 
the  burden  of  proof.  In  the  course  of  time,  however,  it  has 
received  meanings  so  various  that  it  would  be  well  if  the 
term  could  be  dropped.  The  ambiguity  in  the  term  "  pre- 
sumption," already  discussed  by  me,  is  thus  noticed  by  Mr. 
Mill : "  "  To  be  acquainted  with  the  guilty  is  a  presznnption 
of  guilt;  this  man  is  so  acquainted,  therefore  wemay/;r- 
siivic  that  he  is  guilty ;  this  argument  proceeds  on  the  sup- 
position of  an  exact  correspondence  between  presmne  and 
presumption,  which  does  not  really  exist ;  for  '  presumption  ' 
is  commonly  used  to  express  a  kind  of  sligJit  suspicion, 
whereas  '  to  presume  '  amounts  to  absolute  belief."  Whether 
Mr.  Mill  is  right  in  his  definition  of  "presume"  and  "pre- 
sumption "  need  not  now  be  considered.  It  is  enough  for 
the  present  purpose  to  say  that  the   words,  even   if  not   dis- 

2'  Ross  V.  R.  R.,  6  Allen,  87;  Sheldon  v.  R.  R.,  14  N.  Y.  218;  Burke  v. 
R.  R.,  7  Heisk.  451.  See  Piggott  v.  R.  R.,  10  Jurist,  571 ;  3  Man.  Gr.  &  S.. 
229;  Aldredge  v.  R.  R.,  3  M.  &  G.  515. 

22  Mill's  Logic,  II,  442. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  1/ 

tinguishablc  in  the  way  Mr.  Mill  states,  go  to  a  jur}%  if  left 
without  explanation,  open  to  meanings  from  which  conclu- 
sions diametrically  opposite  can  be  drawn.  The  term  "  law  " 
may  be  used,  in  connection  with  presumptions,  in  three 
senses:  (i)  A  presumption  of  law,  in  its  technical  sense,  is, 
as  we  have  seen,  a  presumption  which  jurisprudence  itself 
applies,  irrespective  of  the  concrete  case,  to  certain  general 
conditions  whenever  they  arise.  (2)  But  a  presumption  of 
law  may  be  also  a  presumption  of  fact  which  jurisprudence 
permits;  and  it  is  the  practice  of  judges  to  say  that  a  pre- 
sumption of  fact  is  "legal" — /.  i\,  that  it  is  one  the  law  will 
sustain.  (3)  "  Law,"  as  we  have  already  seen,  may  be  used 
as  including  the  laws  of  nature  and  of  philosophy,  as  well 
as  those  of  formal  jurisprudence.  Juries  are  constantly 
told,  for  instance,  that  certain  conclusions  of  mental  or 
physical  science  are  presumptions  of  law ;  and  in  this  way 
they  are  led  to  suppose  that  such  conclusions  bind,  as  abso- 
lute rules  of  jurisprudence,  the  particular  case,  no  matter 
what  may  be  the  phases  the  evidence  may  assume. 

That  the  difference  between  presumptions  in  law  and  pre- 
sumptions in  fact  is  not  formal,  but  real,  will  be  seen  by  the 
following  analysis : 

I.  A  presumption  of  law  derives  its  force  from ///m/;?/- 
doicc  as  distinguished  from  logic.  A  statute,  for  instance, 
may  say  that  a  person  not  heard  of  for  ten  years  is  to  be 
counted  as  dead.  This  is  a  presumption  of  law,  and  is  arbi- 
trarily to  be  applied  to  all  cases  where  parties  have  been 
absent  for  such  period  without  being  heard  from.  If  there 
be  no  such  statute,  then  logic,  acting  inductively,  will  have 
to  establish  a  rule  to  be  drawn  from  all  the  circumstances  of 
a  particular  case.  Or  a  statute  may  prescribe  that  all  per- 
sons wearing  concealed  weapons  are  to  be  presumed  to  wear 
them  with  an  evil  intent.  This  would  be  a  presumption  of 
law,  with  which  logic  would  have  nothing  to  do.  On  the 
other  hand,  whether  a  particular  person,  who  carries  a  con- 
cealed weapon,  there  being  no  statute,  does  so  with  an  evil 
intent,  is  a  question  of  logic — (/.  c,  probable  reasoning,  acting 
on  all  the  circumstances  of  the  case) — with  which  technical 


10  DISPUTED    QUESTIONS    OF    EVIDENCE. 

jurisprudence  has  no  concern.  It  is  not  necessary,  however, 
to  a  presumption  of  law  that  it  should  be  established  by 
statute,  in  our  popular  sense  of  that  term.  Statute,  in  its 
broad  sense,  includes  juridical  maxims  established  by  the 
courts  as  much  as  juridical  maxims  established  by  the  legis- 
lature. To  make,  however,  a  maxim  established  by  the 
courts  in  this  sense  a  statute,  it  must  be  not  only  definitely 
promulgated  by  judicial  authority,  but  finally  accepted  ;  such 
maxims  being,  to  adopt  Blackstone's  metaphor,  statutes 
worn  out  by  time,  the  maxim  remaining,  though  the  formal 
part  of  the  statute  has  disappeared.  The  prominent  maxims 
of  this  kind  are  the  presumption  of  innocence  and  the  pre- 
sumption of  sanity.  Presumptions  of  law,  therefore,  are 
uniform  and  constant  rules,  binding  only  generically.  Pre- 
sumptions of  fact,  on  the  other  hand,  are  the  conclusions 
drawn  by  free  logic,  binding  only  specifically. 

2.  To  a  presumption  of  law  probability  is  not  necessary, 
but  probability  is  necessary  to  a  presumption  of  fact.  Pater 
est  qucm  iiuptiae  dcmonstrant.  This  is  a  presumption  of  law  ; 
and  this  presumption  holds  good  even  in  cases  where  such 
paternity  is  highly  improbable,  if  it  should  be  possible.  So 
we  can  conceive  of  cases  in  which  it  is  highly  improbable 
that  an  accused  person  should  be  innocent  of  the  crime  with 
which  he  is  charged  ;  yet  probable  or  improbable  as  guilt 
may  antecedently  appear,  he  is  presumed  to  be  innocent 
until  he  is  proved  to  be  guilty.  On  the  other  hand,  without 
probability  there  can  be  no  presumption  of  fact.  A  man 
is  not  presumed  to  have  intended  an  act,  for  instance,  unless 
it  is  probable  he  intended  it. 

3.  Presumptions  of  law  relieve  either  provisionally  or  abso- 
lutely the  party  invoking  them  from  producing  evidence ; 
presumptions  of  fact  require  the  production  of  evidence  as  a 
preliminary.  The  presumption  of  innocence,  for  instance, 
makes  it  provisionally  unnecessary  for  me  to  adduce  evi- 
dence of  my  innocence.  On  the  other  hand,  until  I  am 
proved  to  have  done  a  thing  there  can  be  no  presumption 
against  me  of  intent.  Evidence,  therefore,  which  is  the 
necessary  antecedent  to  presumptions  of  fact,  is  attached  to 


DISPUTED    QUESTIONS    OF    EVIDENCE.  I9 

presumptions  of  law  only  as  a  consequent.  Until  the  evi- 
dence is  adduced  there  can  be  no  presumption  of  fact ;  there 
is  no  presumption  of  law  that  is  not  applicable  before  the 
evidence  is  adduced. 

4.  The  conditions  to  which  are  attached  presumptions  of 
law  are  fixed  and  uniform  ;  those  which  give  rise  to  presump- 
tions of  fact  are  inconstant  and  fluctuating.  For  instance, 
all  persons  charged  with  crime  are  presumed  to  be  innocent. 
Here  the  condition  is  fixed  and  uniform;  it  involves  but  a 
single,  incomplex,  unvarying  feature,  charged  ivitk  crime  ;  it 
is  true  as  to  all  persons  embraced  in  the  category.  On  the 
other  hand,  the  presumption  of  fact,  that  doing  presumes 
intending,  varies  with  each  particular  case,  and  there  are  no 
two  cases  which  present  the  same  features.  Persons  charged 
with  crime  may  be  sane  or  insane,  may  be  adults  or  infants, 
may  be  at  liberty  or  under  coercion  ;  in  each  case,  so  far  as 
concerns  the  presumption  of  law,  they  are  persons  charged 
with  crime,  and  the  presumption  applies  equally  to  each. 
But  whether  a  person  doing  an  act  is  sane  or  insane,  is  an 
adult  or  an  infant,  is  at  liberty  or  under  coercion,  is  essen- 
tial in  determining  intent.  Presumptions  of  fact,  in  other 
words,  relate  to  unique  conditions,  peculiar  to  each  case, 
incapable  of  exact  reproduction  in  other  cases  ;  and  a  pre- 
sumption of  fact  applicable  to  one  case,  therefore,  is  inap- 
plicable, in  the  same  force  and  intensity,  to  any  other  case. 
But  a  presumption  of  law  relates  to  whole  categories  of 
cases,  to  each  one  of  ^v'hich  it  is  uniformly  applicable,  in 
anticipation  of  the  facts  developed  on  trial.  Thus,  for  in- 
stance, all  children  born  in  wedlock  are  presumed  by  law  to 
be  legitimate  until  the  contrary  be  proved ;  and  this  pre- 
sumption applies  to  all  children  so  born,  no  matter  who  they 
may  be.  On  the  other  hand,  whether  a  bastard  is  born  of  a 
particular  father  is  determinable  usually  by  presumptions  ot 
fact  attachable  to  conditions  as  to  which  not  two  cases  pre- 
sent precisely  the  same  type. 

Both  the  fallacy  and  the  mischief  of  the  doctrine  I  am 
contesting  are  signally  illustrated  by  the  way  in  which,  by 
force  of  this  doctrine,Jntention,  which  is  eminently  a  matter 


20  DISPUTED    QUESTIONS    OF    EVIDENCE. 

of  fact,  has  been  turned  into  a  matter  of  law.  We  are  told 
that  it  is  a  presumption  of  law  that  intentional  hurt  done  to 
another  is  malicious.  Now,  this  is  either  a  pctitio  principii,  in 
telling  us  that  something  is  malicious  because  it  is  malicious, 
or  the  argument  rests  on  the  major  premise,  that  all  hurts 
are  malicious,  which  is  untrue  in  fact.  The  only  legitimate 
presumption  we  can  draw  in  such  cases  is  a  presumption  of 
fact,  viz.,  that  it  is  probable,  from  the  circumstances  of  the 
case,  that  malice  existed.  The  fallacy  of  turning  an  infer- 
ence of  fact,  in  respect  to  intent,  into  a  presumption  of  law, 
may  be  thus  illustrated:  "All  men  who  kill  do  so  mali- 
ciously. A  has  killed  B ;  therefore  he  has  done  so  mali- 
ciously." This  is  the  argument  as  to  intent  put  syllogistic- 
ally.  But  this  may  be  indefinitely  varied ;  and  of  these 
variations  we  may  take  the  following,  some  of  which  have 
been  sanctioned  by  the  courts  :  "  Men  who  fly  when  accused 
are  guilty.  A  flies  when  accused ;  therefore,"  etc.  Or, 
"  Accused  parties  who  fabricate  evidence  are  guilty  of  the 
offence  they  thus  attempt  to  cover.  A  has  done  this  ;  there- 
fore," etc.  Or,  "  He  who  has  a  motive  to  commit  a  crime 
commits  it.  A  had  a  motive  to  commit  a  particular  crime ; 
therefore  A,"  etc.  Or,  "  He  who  was  in  the  neighborhood 
at  the  time  of  the  crime  committed  it.  A  was  in  such 
neighborhood ;  therefore  A,"  etc.  Now,  no  one  doubts 
that  it  is  admissible,  as  a  series  of  facts  from  which  guilt  may 
be  logically  inferred,  to  prove  that  the  defendant  had  a  motive 
to  commit  the  crime,  and  that  he  was  in  the  neighborhood  at 
the  time  the  crime  was  committed  ;  nor  can  it  be  disputed 
that  the  inference  of  guilt  in  the  latter  case  is  the  same  in 
kind,  the  inference  of  guilty  intent  from  the  mere  fact"  of 
firing  a  shot.  We  must,  therefore,  either  treat  all  presump- 
tions of  fact  as  presumptions  of  law,  or  we  must  remand 
the  presumptions  of  malice  and  of  intent  to  their  proper 
place  among  presumptions  of  fact.  Our  office,  in  other 
words,  in  all  questions  of  motive  and  purpose,  is,  as  has 
been  said,  not  deduction,  but  induction.  It  is  not,  "All  acts 
of  class  A  have  a  specific  intent,  and  this  act  being  of  class 
A,  consequentl}- has  such  intent ;  "  but  it   is,    "The   circum- 


DISPUTED    QUESTIONS    OF    EVIDENCE.  21 

stances  of  the  case  before  us  make  it  probable  that  the  act 
was  done  intentionally."  The  process  is  one  of  inference 
from  fact,  not  one  of  predetermination  by  law. 

The  fallacy  which  has  just  been  noticed  pervades  the  civil 
as  well  as  the  criminal  side  of  our  law.  Thus  we  are  told 
by  an  authoritative  writer  that  "  the  deliberate  publication 
of  a  calumny,  ivhich  the  publisher  knoivs  to  be  false,  raises, 
under  the  plea  of  '  Not  guilty  '  to  an  action  for  libel,  a  con- 
clusive presumption  of  malice."  ^3  Now,  here  again  is  either 
a  mere  petitio principii,  being  equivalent  to  saying,  "  A  false- 
hood uttered  deliberately  and  knowingly  is  a  falsehood 
uttered  deliberately  and  knowingl}-,"  or  we  have  exhibited 
to  us,  not  a  "conclusive,"  but  a  rebuttable,  presumption  of 
malice.  Undoubtedly  the  fact  that  a  document,  attacking 
the  character  of  another,  is  published  by  a  mere  volunteer, 
is  ground  from  which  malice  may  be  inferred.  But  this  fact 
is  not  always  enough  to  make  out  malice,  for,  when  the  pub- 
lication is  privileged,  then,  in  order  to  show  malice,  facts 
inconsistent  with  bo)ia  fides  must  be  proved.  ^+  Whether 
there  is  malice,  therefore,  even  by  force  of  the  very  line  of 
cases  before  us,  is  a  question  of  fact,  determined  by  the  evi- 
dence in  the  particular  case.  Another  illustration  of  the 
same  error  may  be  noticed  in  an  English  ruling,  that  fraud  is 
to  be  inferred  wherever  one  man  tells  an  untruth  to  another 
for  the  purpose  of  obtaining  the  latter's  goods.  '^  Here, 
again,  we  have  the  same  dilemma.  Either  the  ruling,  if  it 
means  that  he  who  intends  to  cheat  has  the  intention  of 
cheating,  is  a  bare  petitio  priiieipii,  or  it  rests  on  a  false  pre- 
mise, namely,  that  a  man,  who  by  means  of  an  untruth 
obtains  another's  goods,  intends  to  cheat,  in  the  teeth  of  the 
fact  that  there  are  innumerable  cases  in  which  untruths  are 
uttered  unconsciously,  or  as  mere  brag,  or  as  matters  of 
opinion,  in  which   cases  it  is  held  that  the  intention  to  cheat 

23  Taylor's  Evidence,  g  71,  citing  Haire  v.  Wilson,  9  B.  &  C.  643;  R.  v. 
Shipley,  4  Doug.  73,  177;  Fisher  v.  Clement,  10  B.  &  C.  475;  Baylis  v. 
Lawrence,  10  A.  &  E.  925. 

24  Bromage  v.  Prosser,  4  B.  &  C.  247  ;  Spill  v.  jMaule,  L.  R.  4  Ex.  232  ; 
Whitefield  v.  R.  R.,  i  E.,  B.  &  E.  115. 

25  Tapp  V.  Lee,  3  Bos.  &  Pul.  371.      See  Pontifexv.  Bignold,  3  M.  &  Gr.  63. 


22  DISPUTED    QUESTIONS    OF    EVIDENCE. 

is  not  proved.''^  In  this  case,  also,  we  have  the  process  of 
deduction  erroneously  substituted  for  induction,  by  which 
alone,  as  we  have  seen,  conclusions  as  to  intent  can  be  reached. 

It  will  be  seen,  therefore,  that  a  presumption  of  law  is  a 
judicial  postulate  that  a  certain  predicate  is  universally  assign- 
able to  a  certain  subject.  A  presumption  of  fact  is  an  argu- 
ment from  a  fact  to  a  fact.  That  the  scholastic  jurists  should 
have  overlooked  this  important  distinction  is  natural.  They 
were  mostly  casuists,  proficients  in  realistic  philosophy, 
framed  to  construct  endless  groups  of  hypothetical  cases, 
and  to  conceive  of  each  group  as  having  a  real  existence. 
Such  groups  it  was  their  office  to  classify,  and  to  each  group 
to  attach  certain  judicial  differentia.  In  addition  to  this,  at 
a  time  when  judges  were  comparatively  untutored,  and  when 
they  had  control  over  facts  as  well  as  law,  it  seemed  desirable 
to  limit  as  far  as  possible  their  discretion  by  attaching  to 
specific  combinations  of  facts  certain  fixed  legal  attributes. 
To  understand  how  completely  the  prevalent  classification 
of  presumptions  has  been  borrowed  from  scholastic,  as  dis- 
tinguished from  classical,  authorities,  it  is  proper  to  examine 
specifically  the  authors  on  whom  our  most  authoritative  text 
writers,  when  treating  of  presumptions,  rely. 

Of  the  scholastic  jurists,  the  earliest  to  whom  our  text 
writers  appeal  is  Accursius  (1180-1260).  Most  of  the 
probable  reasons  which  come  in  the  way  of  this  learned 
glossarist  are  treated  by  him  as  presumptions  of  law.  Among 
these  we  may  notice  the  following  : 

Intent  to  be  presumed  on  proof  of  killing,  but  it  may  be 
rebutted  by  praesumtiones,  probando  amicitiam  etafifinitatem 
et  qualitatem  occidentis. 

Constancy  of  disposition  is  a  presumption  of  law  because 
praesumitur  quis  remanere  in  eadem  voluntate. 

Due  execution  of  an  instrument  is  presumed  as  matter  of 
law  because  praesumitur  solemnitas. 

Praesumitur  ex  eo^quod  plurimum  accidit,  ex  eo  quod  fieri 
solet. 

^^  See  those   cases   enumerated    in   detail  in    Whart.    Cr.    Law   (7th   ed.) 
II  2118,  2133. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  23 

Quis  semper  igiiorare  praesumitur,  nisi  scire  probetur. 

Praesumitur  ex  eo  quod  plurimum  accidit,  ex  eo  quod  fieri 
solet.* 

Tailored,  a  Bolognese  jurist  and  ecclesiastic,  whose  work 
on  the  ordo  judiciaris  was  written  in  1324,  though  not  pub- 
lished until  15  15,  is  also  frequently  cited  by  our  text  writers 
to  sustain  their  acceptance  of  the  dominant  view.  Tancred 
rests  his  numerous  conclusions  on  the  following  axioms : 
Omne  bonum  factum  recte  praesumitur  actum ;  omne 
malum  factum  prave  praesumitur  actum.  It  is  astonishing 
that  English  judges  and  jurists  should  quote  such  maxims 
without  noticing  how  prejjosterous  is  the  fallacy  they  con- 
tain. Putting  them  into  plain  English,  Tancred's  maxims 
are  a  vicious  circle  of  the  coarsest  texture.  They  are  simply 
this  :  "  All  good  acts  are  good  ;  all  bad  acts  are  bad."  Yet, 
as  we  have  seen,  this  is  no  worse  than  saying,  "  All  inten- 
tional acts  are  intentional;  all  malicious  acts  are  malicious." 

Alciat,  or  Alciatus,  who  is  prominently  cited  by  Mr.  Best, 
in  his  treatises  on  Presumptions  and  on  Evidence,  was  an 
Italian  jurist  (1492-1550),  renowned  as  the  founder  of  a  school 
of  jurisprudence  which  united  literary  elegance  with  judicial 
research.  In  his  treatise  de  pnvsiinitionihus  he  discusses  at 
large  prczsunitiones  juris  et  de  jure  and  prcesumtioiies  juris^ 
recognizing  at  the  same  time  as  authoritative  the  Aristotelian 
distinction  between  probatio  inartijicialis  and  prohatio  artiji- 
cialis.  A  presumption  juris  et  de  jure,  he  tells  us,  is  one 
established  by  law,  and  is  called  de  jure  because  "  super  tali 
prsesumtione  lex  inducit  firmum  ius  et  habet  eam  pro  veri- 
tate."  This  kind  of  presumption  is  the  "  dispositio  legis 
aliquid  prassumentis  et  super  pra^sumto  tanquam  sibi  com- 
perto  statuentis,"  and  is  irrebuttable.  A  prcesunitio  juris, 
however  (rebuttable  presumption  of  law),  is  a  "  probabilis 
conjectura  ex  certo  signo  proveniens,  quae  alio  non  adducto 
pro  veritate  habetur."  It  must  be  probable,  and  with  its 
probability  increases  its  force;  it  must  be  a  conjectura,  and 
not  absolute  proof;  it  must  be  ex  certo  sig)io  proveniens ; 
Alciatus  properly  holding  that,  to  enable  a  presumption  of 

*NOTE. — See  these  and  others  quoted  in  Burckhardt,  Presumtionen,  14-15. 


24  DISPUTED    QUESTIONS    OF    EVIDENCE. 

law  to  operate,  it  must  rest  upon  a  stable  base  of  fact.  But 
at  this  point  Alciat  opens  the  way  to  subsequent  errors  by 
holding  (naturally  enough  to  him,  at  an  era  when  the  prov- 
inces of  law  as  the  philosophy  of  social  experience,  and  of 
law  as  jurisprudence,  were  not  clearly  distinguished)  that 
■every  probabilis  coiijcctura  is  a  pncsimitio  juris.  As  to  the 
prcBsumtio  Jiomiiiis  he  does  not  discourse  ;  but  among /'r<r^5//7/z- 
tioiies  juris  he  enumerates  certain  probabilcs  coujeciiircE  which 
are  based,  not  upon  jurisprudence,  but  upon  social  science. 
These  he  seeks  to  subordinate  to  three  rules :  ^^ prima  rcgula, 
quod  qualitas,  quae  naturaliter  inest  homini,  semper  adesse 
prsesuniitur;  sccuuda,  o^vxo^  niutatio  non  praesumitur;  tciiia, 
quod  semper  fit  praesumtio  in  mcliorem  partem."  Among 
the  illustrations  of  the  first  rule  he  mentions  parental  love,  as 
a  result  of  which  it  is  to  be  presumed  that  the  disinheritance 
of  a  child  is  intended  bona  mefite,  and  that  the  education 
given  by  a  parent  to  a  child  is  gratuitous.  As  an  illustra- 
tion of  the  second  rule  he  announces  it  to  be  a  presump- 
tion that  every  man  cares  more  for  his  own  business  tlian 
that  of  another  entrusted  to  him,  and  that  when  two  per- 
sons perished  together  the  strongest  will  be  presumed  to 
have  survived.  In  applying  the  rule  mutaiio  non  pnesuniitur 
he  specifies  as  presumptions  of  law  "  semel  malus,  semper 
malus,"  "  olim  obligatus,  hodie  obligatus,"  "  olim  dominus, 
hodie  dominus."  Undoubtedly  these  are  presumptions  of 
fact,  to  be  drawn  more  or  less  convincingly  from  the  cir- 
cumstances of  each  particular  case.  They  are,  therefore, 
presumptions  we  are  led  to  make  from  our  observation  of 
society,  and,  in  practical  life,  business  would  be  at  a  stand- 
still unless  they  were  employed.  Jllutatio  non  pi'cesuniitur, 
so  Alciat  correctly  tells  us ;  but  the  base  from  which  this 
presumption  starts  has  none  of  the  fixedness  and  constancy 
necessary  to  the  support  of  a  presumption  of  law,  defining 
law  as  jurisprudence.  On  the  contrary,  niutatio  no)i  pni- 
suinitur  varies  witli  each  case,  because  susceptibility  to 
change  is  a  quality  which  is  possessed  to  the  same  degree  by 
scarcely  any  two  objects  we  can  enumerate.  Mutatio  no?i 
pnesuniitur  we  may  say  as  to  the  procession  of  the  seasons 


DISPUTED    QUESTIONS    OF    EVIDENCE.  2$ 

in  order,  but  not  as  to   any  particular  kind  of  weather  in  a 
particular  season. 

Menoch  (Menochius),  born  in  Paris  in  1532,  afterwards 
senator  and  counsellor  in  Milan,  dying  in  1607,  is  the  author 
of  a  copious  treatise,  in  six  books,  "  de  presumptionibus, 
■conjecturis,  signis,  et  indiciis."  From  Menoch  has  been 
•drawn  no  small  part  of  the  English  law  on  this  branch  of 
evidence.  His  first  book  treats  of  the  general  principles  of 
presumption,  filling  with  these  a  folio  of  large  size.  The 
remaining  four  books  classify  presumptions  as  follows ;  quae 
versantur  (i)  circa  judicia  ;  (2)  circa  contractus;  (3)  circa 
ultima  clispositiones  et  voluntates  morientium ;  (4)  circa 
■delicta  et  maleficia.  The  last  book  is  devoted  to  miscella- 
neous presumptions  which  cannot  de  included  within  this 
•classification.  He  adopts  the  Aristotelian  divisions,  as  applied 
by  Quintilian,  between  artificial  and  inartificial  proof;  and 
he  holds  that  this  division  is  substantially  recognized  in  the 
classification,  w^hich  he  adopts,  of  presumptions  as  jur/s  ct 
de  Jure,  Juris,  and  homints.  The  prcEStuntio  juris  et  de  jure 
he  defines  as  a  necessary  conclusion  from  a  fixed  state  of 
facts ;  the  proesurntio  juris,  and  the  prcesumtio  Jioniiuis,  as 
each  a  probable  conclusion  from  a  fixed  state  of  facts.  The 
priBS7nntio  juris  is  distinguished  from  the  pnesuuitio  hosninis 
in  this,  that  the  first  is,  and  the  second  is  not,  expressly 
established  by  statute.  As,  however,  the  statutes  cannot 
•embrace  all  possible  cases,  then,  when  a  presumption  is  not 
included  in  the  letter  of  the  statute,  but  is  analogous  to  one 
so  included,  it  is  to  be  treated  as  within  the  statute  ;  a  con- 
'Cession  which,  as  Burckhardt  remarks,*  obliterates  the  dis- 
tinction between  the  prcBsumtio  juris  and  the  prcEsumtio  homi- 
nis.  As  to  the  interesting  question  as  to  the  seats  or  bases 
■from  which  presumptions  may  be  drawn,  he  enumerates  the 
following  six  as  exhaustive:  (i)  persona;  (2)  causa;  (3) 
factum;  (4)  dictum;  (5)  non-factum ;  (6)  non-dictum.  That 
this  division  embraces  social  and  physical  science  under  the 
term  "  law  "  is  plain  from  the  illustrations  which  are  appended. 

*  Note. — Civilistische  Pi-esumtionen,  t,t„  to  which  work  I  am  indebted  for 
part  of  the  above  analysis. 


26  DISPUTED    QUESTIONS    OF    EVIDENCE. 

It  is  presumed,  we  are  told,  a  persona:  qnalitate,  that  an  old 
person  dies  before  a  youth  ;  that  a  woman  is  less  resolute 
than  a  man  ;  that  the  weaker  of  two  combatants  did  not 
begin  the  fight,  that  scmcl  mains,  semper  mahis  (a  maxim  that 
is  reproduced  by  Rochefoucault).  Under  the  head  of  causa 
are  enumerated  a  series  of  conclusions  based  on  the  science 
of  psychology;  and  the  probable  results  of  amor,  spes,  and 
metiis  are  detailed.  As  to  mctns,  we  have  announced  the 
presumption  that  a  young  woman  loses  her  chastity  only  by 
force.  Ex  facto  come  the  following :  factnm  segiiens  declaret 
voluntatem  preecedentem  ;  a  prascjiti  ad  prcBterltnm  et  fntii- 
rum  pnusnmitnr ;  and  even  a  fntnro  ad  pr<£sens  ei  prceteritnm 
prcBsnmitnr.^ 

The  following  psychological  inference  is  introduced  by 
Menoch  as  a  presumption  of  law :  non  preFSumendus  est  qnis- 
quam  dicere  qnod  non  prius  mente  agitaverit ;  a  proposition 
which  has  been  the  cause  of  much  confusion  in  our  later 
Anglo-American  jurisprudence.  It  is  sufficient  here  to  say 
that  the  term  "  law  "  is  so  defined  by  Menoch  as  to  include 
sociology,  psychology,  and  physical  science,  and  that,  as 
presumptions  of  law,  he  treats  psychological,  social,  and 
physical  inductions.  No  doubt  a  statute  may  take  an  induc- 
tion so  borrowed,  and,  in  order  to  relieve  the  parties  from 
proving  that  which  is  reasonably  settled,  make  it  a  presump- 
tion of  law.  When  two  persons  are  exposed  on  one  plank 
to  the  dangers  of  the  sea,  and  both  die,  the  probability  is,  so 
we  infer,  that  the  stronger  survives  the  weaker.  We  may 
base  this  probability  on  the  instinctive  love  of  life,  which 
leads  the  stronger  to  use  his  superior  strength  to  secure  his 
survivorship ;  or  on  the  physical  laws  of  the  human  frame, 
which  generally  give  longer  endurance  to  the  strongest. 
These,  however,  are  presumptions  of  fact,  which  vary  with 
each  particular  case.  The  legislature,  however,  in  order  to 
simplify  litigation,  and  to  give  an  arbitrary  test  by  which 
something  like  uniformity  of  result  may  be  reached,  may 
enact  by  statute  that  in  such  cases  the  survivorship  is  to  be 

*  Note. — Menoch,  qu.  19. 


DISPUTED    QUESTIONS    OF    EVIDENCE.  2/ 

determined  by  certain  fixed  rules.  The  presumption  in  such 
case  is  one,  not  of  fact,  but  of  law.  The  law  may  be  very 
absurd,  and  may  conflict  with  the  conclusions  of  those 
sciences  which  are  most  capable  of  judging  such  issues;  but, 
whether  absurd  or  not,  it  is  binding.  Here,  then,  is  the 
distinction  which  escaped  Henoch,  from  the  fact  that  he 
embraced  all  science  and  experience  under  the  term  "law." 
A  presumption  of  law,  in  its  true  sense,  is  a  presumption 
which,  whether  probable  or  improbable,  is  applied  by  statute, 
or  by  that  which  is  equivalent  to  statute,  to  a  fixed  and 
constant  condition  of  facts.  A  presumption  of  fact  is  a  pre- 
sumption applied  by  logic,  aided  either  by  common  experi- 
ence or  by  scientific  research,  to  the  exceptional  and  unique 
facts  of  each  particular  case. 

If  it  be  objected  that  I  have  exhibited  in  too  great  detail 
the  views  of  the  scholastic  jurists  from  whom  our  prevalent 
classification  of  presumptions  is  taken,  the  answer  is  that 
it  is  only  by  such  an  exposition  that  the  true  character  of 
the  scholastic  system  can  in  this  relation  be  known.  Eminent 
English  text  writers,  for  instance,  cite  Henoch  and  Alciat  as 
authority  for  the  proposition  that  intent  is  a  presumption 
of  law ;  and,  in  fact,  when  we  go  back  to  the  earlier  English 
cases  announcing  this  maxim,  we  find  that  its  sole  authorities 
are  the  scholastic  commentators  to  whom  I  have  just  referred. 
We  are  led,  therefore,  to  suppose  (i)  that  maxims  such  as 
these  have  the  authority  of  the  Roman  law,  and  (2)  that  they 
are  part  of  a  symmetrical  system  of  jurisprudence  based,  as 
all  practical  jurisprudence  must  be,  on  the  recognition  of  the 
coordinate  power  of  the  factors  of  law  and  of  fact.  But  ( i )  the 
maxims  in  question,  and  the  classification  of  presumptions 
to  which  they  relate,  are  unknown  to  the  Roman  law,  and 
are  the  creatures  of  the  speculative  scholasticism  of  the 
middle  ages  ;  and  (2),  what  is  more  important,  they  are  part 
of  a  false  system  which  ignored  reason  as  a  coordinate  factor 
in  concrete  adjudication,  and  which  undertook  to  decide  by 
a  pre-announced  rule  of  law  every  possible  contingent  ques- 
tion of  fact.  To  these  errors  are  attributable  the  multitu- 
dinous "presumptions  of  law"  of  the  scholastic  jurists;  to- 


28  DISPUTED    QUESTIONS    OF    EVIDENCE. 

this  we  owe  those  immense  volumes  of  judicial  casuistry  which 
have  done  so  much  to  mislead  English  writers  on  evidence. 
The  restoration  of  the  classical  and  philosophical  doctrine 
in  this  respect  is  by  a  process  not  unlike  the  restoration, 
under  Niebuhr's  auspices,  of  the  treatise  of  Gaius,  of  which 
so  much  was  used  in  the  Justinian  compilation.  The  parch- 
ment on  which  the  full  text  of  Gaius  was  written  had  been 
covered  by  monkish  legends,  while  the  original  writing  had 
been  apparently  obliterated.  By  diligent  and  skilful  labor, 
however,  the  monkish  legends  have  been  removed  and  the 
text  of  Gaius  restored.  If  we  are  bound  by  authority,  then 
our  duty  is  to  perform  the  same  office  with  the  mediaeval 
text  books  by  which,  in  this  branch  of  law,  our  conclusions 
have  been  so  long  perverted.  We  must  get  rid  of  the  crust 
of  false  scholasticism  by  which  the  true  authorities  have 
been  hidden,  and  restore  those  authorities  in  the  purity  of 
their  text.  If  we  are  not  bound  by  authority,  then  let  us 
toss  away  the  mediaeval  as  well  as  the  classical  jurists  ;  but 
let  us,  at  least,  regain  our  logic.  If  there  is  no  technical 
jurisprudence  fettering  us  to  a  particular  theory  of  presump- 
tions, then  we  must  fall  back  on  reason,  and  hold  that  only 
is  a  thing  presumed  to  be  true  when  its  truth  can  be  proved. 

Francis  Wharton. 

Cambridge,  Mass. 


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